Forcing the Spring

Inside the Fight for Marriage Equality

By Jo Becker

Fairly or not, success is often measured by expectations. In 2009, the constitutional challenge to California's Proposition 8 began in a San Francisco federal court with the goal of legalizing same-sex marriage in all 50 states. The state-by-state strategy of the gay rights establishment was taking too long, declared the political consultants and Hollywood celebrities who formed the American Foundation for Equal Rights (AFER) to challenge the state's ban on same-sex marriage. With great fanfare, they hired famed legal adversaries Ted Olson and David Boies, newcomers to the cause. Gay groups opposed the move as too risky.

Four years later, the Supreme Court issued a momentous decision on same-sex marriage, but not in the AFER lawsuit. The victory came in a contemporaneous challenge to the federal Defense of Marriage Act brought by experienced gay rights litigators in New York on behalf of Edith Windsor, a lesbian widow who was denied a standard spousal estate-tax deduction at a cost of $363,000.

On the first page of "Forcing the Spring: Inside the Fight for Marriage Equality," an exhaustive account of the Prop. 8 litigation, Jo Becker sets very high expectations. A Pulitzer Prize-winning investigative reporter for the New York Times, Becker likens the AFER lawsuit to "a revolution." She compares the political consultant who started the group, Chad Griffin, to the renowned black civil rights activist Rosa Parks. Later she depicts him brooding over a memorial to the Rev. Martin Luther King Jr.

As Becker knows, the gay marriage movement was not the brainchild of Griffin as he watched the 2008 election returns in his "spacious suite at the Westin St. Francis hotel." Despite nods to visionary legal strategists like Mary Bonauto and Evan Wolfson, who are mostly lumped together as part of a stodgy and self-important old guard, "Forcing the Spring" provides little historical context for the Prop. 8 litigation. Worse, Becker claims that the cause of gay marriage "languished in obscurity" until AFER rescued it.

Detractors have focused on risible assertions like these. Becker has responded that her book is not an all-encompassing history of the struggle; it only recounts an important chapter. Fair enough, but a book that credits a single lawsuit for a dramatic breakthrough bears a heavy burden of persuasion.

"Forcing the Spring" is an impressive accomplishment on many levels. Becker was granted unparalleled access for almost four years to the AFER team. Based on scores of interviews with participants, she details a comprehensive public-relations and fundraising strategy, lays out in plain language the legal doctrine, and tells the human stories that gave it life.

There are advantages and pitfalls to such insider journalism. Becker knows more about the Prop. 8 case than almost anyone else. But she too uncritically accepts her main sources' conclusions about how important their work was. One senses she thought she had bet on a historic winner and then forces the narrative into that mold.

At trial, the Olson-Boies duo dissected Proposition 8. Olson spoke with authority and conviction about the fundamental right to marry and the persistence of animus against gay people. Boies tore into opposing witnesses. The trial covered everything from the history of marriage to the science of sexual orientation.

At the same time, a sophisticated public-relations campaign was launched. Griffin maintained that the gay rights movement was too closely identified with "flamboyant, off-putting" spectacles of "men wearing leather chaps and bare-chested women on motorcycles at gay pride parades." He would make sure press coverage featured wholesome gay couples and plenty of American flags.

Certain moments in the book take your breath away. One of the plaintiffs, Sandra Stier, testified about marriage as a uniquely significant status. Although she'd been committed to her partner for 10 years, she explained, "I don't have a word to tell anybody about that."

Ryan Kendell recalled his mother lamenting that she didn't abort him and said she would rather he suffer Down syndrome than be homosexual. At 14, he was sent into "conversion therapy," a futile and scarring effort to change his sexual orientation. The testimony reminded presiding Judge Vaughn Walker, whose own homosexuality was revealed by The Chronicle shortly after the trial, of the time he'd sought counseling to cure his "affliction."

Kendell's testimony also moved Charles Cooper, the lead attorney defending Prop. 8. He learned during the case that his adopted daughter was a lesbian. Cooper admitted to Becker that he was rethinking matters and that he would soon celebrate his daughter's marriage.

Unfortunately, the media impact of the trial was blunted by events beyond AFER's control. A devastating earthquake in Haiti dominated headlines. Emergency intervention by the Supreme Court prevented the trial from being televised, robbing it of visual power.

American public opinion moved toward majority support for same-sex marriage as the case progressed. Becker's sources attribute much of the shift to AFER's work. That might be right, but the book presents no actual evidence supporting it. Given how much was happening at the same time - including successful state court lawsuits, legislative battles and referenda in several states under the guidance of groups like Wolfson's Freedom to Marry - it would be difficult to prove that AFER's effort made the difference.

The AFER team did win a broad ruling from Judge Walker, the first federal decision striking down a same-sex marriage ban. But the Ninth Circuit appeals court (and later the Supreme Court) ignored the trial record that had been so skillfully constructed by Olson and Boies. The appeals court also narrowed the legal victory, oddly confining the rationale to California, a result Olson wanted to avoid.

In the Supreme Court, the DOMA case turned out to be the pivotal one. The decision in United States vs. Windsor has already led to the invalidation of several state marriage limitations.

To the very end, the AFER team sought a 50-state victory in its case, Hollingsworth vs. Perry. The effort fizzled in a technical ruling on standing and agency law that only a lawyer could love. What began with a constitutional bang ended with a jurisdictional whimper.

In the closing pages of her book, Becker tries to resuscitate the Perry legacy by claiming that Justice Kennedy's expansive Windsor opinion "seemed to have grafted whole passages" from Olson's argument. But that speculation, too, seems forced. Kennedy's observations about dignity and second-class status echoed many arguments by lawyers in both cases. The laurels belong to Windsor's pro bono attorneys, among them Bonauto, who had no embedded journalist shadowing them.

The Perry case did bring same-sex marriage back to California, no mean feat. The cost was $6 million in fees paid to Olson's law firm - still a bargain compared with the expense of another statewide campaign on the issue. The worst fears of the gay legal establishment about a precedent-setting defeat did not materialize.

Like the litigation it chronicles, "Forcing the Spring" delivers a lot but ultimately falls short of its promise. It is less the tale of a revolution than the definitive account of one memorable sally in an unfinished crusade.

Dale Carpenter is a professor at the University of Minnesota Law School and the author of "Flagrant Conduct: The Story of Lawrence v. Texas" (Norton, 2012). E-mail: books@sfchronicle.com